Thiersaint v. Comm'r of Corr., SC19134

THIERSAINT v. COMMISSIONER OF CORRECTION

SC19134

Supreme Court of Connecticut

April 14, 2015

FIRST DISSENT

PALMER, J., dissenting. I disagree with the majority's conclusion that Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), which held that the failure of defense counsel to advise a noncitizen client regarding the immigration consequences of pleading guilty establishes the performance prong of a claim of ineffective assistance of counsel under the sixth amendment, announced a new procedural rule within the meaning of Teague v. Lane, 489 U.S. 28, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), and therefore does not apply retroactively in habeas proceedings. Although I agree that we should continue to apply the Teague framework in determining whether a decision that recognizes a constitutional rule of criminal procedure should be applied retroactively in habeas proceedings, I would conclude that Padilla did not announce a new rule because it was merely an application of the well established standard governing ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and because, under Connecticut law, the obligations of counsel for the petitioner, Emmanuel Thiersant, were consistent with the court's holding in Padilla. I conclude, therefore, that the habeas court in the present case properly determined that the petitioner was deprived of his right to the effective assistance of counsel. Accordingly, I respectfully dissent.¹

The relevant facts and procedural history, which are not disputed, may be summarized briefly as follows. The petitioner is a native of Haiti who moved to the United States in 1994, when he was fourteen years old. Shortly after his arrival, he was critically injured in a motor vehicle accident, and required the amputation of his right leg above the knee. Following the accident, the petitioner was hospitalized for eight months, and was administered a variety of drugs for his injuries. After leaving the hospital, he developed an addiction to crack cocaine. In 2006, the petitioner was arrested and charged with various narcotics offenses after making two $20 sales of crack cocaine to an undercover police officer. The petitioner was represented by Attorney John Imhoff. In 2007, the petitioner pleaded guilty to possession of cocaine with intent to sell in violation of General Statutes § 21a-277 (a), and, based on his conviction for that offense, he was subsequently ordered removed from the United States. Thereafter, the petitioner commenced the present habeas action, alleging that Imhoff had failed to advise him of the immigration consequences of his guilty plea in violation of Padilla v. Kentucky, supra, 559 U.S. 374. The habeas court determined that Padilla, which was decided after the petitioner's conviction became final, applied retroactively to the petitioner's claim.

On the merits of the petitioner's claim, the habeas court agreed with the petitioner that he had been deprived of the effective assistance of counsel. The court first determined that Imhoff had performed deficiently because his representation fell below "an objective standard of reasonableness." Strickland v. Washington, supra, 466 U.S. 688. In support of this conclusion, the habeas court found that Imhoff had failed to advise the petitioner that his conviction under § 21a-277 (a) would constitute an aggravated felony for immigration law purposes and that, as a result of that conviction, he would be subject to mandatory detention by the United States Immigration and Customs Enforcement Agency upon the completion of his sentence. In addition, the court found that Imhoff had failed to advise the petitioner that his conviction would render him ineligible for almost all defenses to removal, virtually assuring that he would be ordered removed from the United States and permanently barred from returning. According to the habeas court, those adverse immigration consequences of a conviction under § 21a-277 (a) were sufficiently clear and definite that Imhoff had a duty to advise the petitioner about those consequences prior to his plea. The court further concluded that, at the time Imhoff represented the petitioner, a reasonably competent defense attorney would have provided such advice. Instead, Imhoff "gave the petitioner differing, unspecific and incorrect advice, all of which left room for the petitioner to believe that he could contest his removal," and advised the petitioner to consult an immigration attorney for more specific advice. The court also concluded that reasonably competent counsel would have raised the petitioner's immigration status during plea negotiations in an effort to obtain an alternative disposition that would not have resulted in a conviction of an aggravated felony, and Imhoff had failed to do so.

In addition, the habeas court found that the petitioner was prejudiced by Imhoff's deficient performance because, had the petitioner known that his conviction would subject him to near certain and permanent removal from the United States, he would have insisted on going to trial rather than pleading guilty. The habeas court found that this would have been a rational decision based in large part on the conditions the petitioner would face in Haiti upon his return to that country, as well as the petitioner's strong ties to the United States. The petitioner has been a lawful permanent resident of the United States for almost twenty years and currently lives with his longtime girlfriend, who suffers from seizures and often requires his assistance, and their young daughter. As a result of the injuries he suffered in the motor vehicle accident, the petitioner requires the use of either a prosthesis or a wheelchair. The habeas court credited evidence presented by the petitioner regarding the inhumane conditions in Haiti for criminal deportees,especially those who are disabled. Upon return to Haiti as a criminal deportee, the petitioner would be subject to indefinite detention in a cell measuring ten feet by ten feet, containing twenty to sixty other detainees, where temperatures reach 100 degrees and rodents, insects, and disease are rampant. Detainees do not have access to bathroom facilities or medical care, and many detainees become seriously ill or die due to the extreme conditions. Detainees also must rely on family members or fellow detainees for food and water because it is not provided by the government. Because the petitioner has no family in Haiti, he would have to rely on his fellow detainees or go without nourishment. Even if he were released from detention, the petitioner likely would face discrimination and harassment from Haitian citizens because of his disability and his status as a criminal deportee. As the habeas court observed, in light of these extraordinary circumstances, the petitioner's decision to forgo the plea offer and proceed to trial would have been a reasonable one regardless of the strength of the state's case against him because "he would have had nothing to lose" by taking his chances at trial. The habeas court therefore granted the petitioner's petition for a writ of habeas corpus and ordered the petitioner's conviction vacated so that he could stand trial on the charges. The respondent, the Commissioner of Correction, appealed, claiming that the habeas court had improperly concluded that Padilla applied retroactively to the petitioner's claim.

I

As the majority has explained, claims of ineffective assistance of counsel at the plea stage are governed by the standard set forth in Strickland v. Washington, supra, 466 U.S. 687-91, and Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). Under Strickland and Hill, a habeas petitioner must prove that "counsel's representation fell below an objective standard of reasonableness . . . [and] that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial."² (Citations omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575-76, 941 A.2d 248 (2008). In Padilla v. Kentucky, supra, 559 U.S. 374, the United States Supreme Court concluded that advice regarding the immigration consequences of a guilty plea is not categorically removed from the sixth amendment's protections, and that a criminal defense attorney may render constitutionally ineffective assistance by failing to advise a noncitizen client about such consequences. Subsequently, in Chaidez v. United States, U.S. , 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013), the court concluded that Padilla does not apply retroactively in federal habeas proceedings, so that a noncitizen whose conviction became final before the decision in Padilla was announced is not entitled to relief infederal habeas court. In reaching its conclusion, the court applied the retroactivity framework it previously had set forth in Teague v. Lane, supra, 489 U.S. 288. As the court explained, under Teague, when a decision announces a "new rule, a person whose conviction is already final may not benefit from the decision in a [federal] habeas or similar proceeding. Only when we apply a settled rule may a person avail herself of the decision on collateral review."³ (Footnote omitted; internal quotation marks omitted.) Chaidez v. United States, supra, 1107. The court concluded that Padilla announced a new rule and, consequently, declined to give it retroactive effect. Id., 1113.

Of course, if we were bound to follow Chaidez, the respondent in the present case would be entitled to prevail on his appeal because, under Chaidez, Padilla does not apply retroactively. As the United States Supreme Court made clear in Danforth v. Minnesota, 552 U.S. 264, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008), however, Teague applies only to federal habeas review, and states are therefore free to...